901-fa-3073-08 (+1) (Jt)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO. 3073 OF 2008

WITH

CIVIL APPLICATION NO. 10791 of 2021 in FA/3073/2008

United India Insurance Company Ltd.

Through Divisional Manager,

Divisional Office, Jalgaon.

…. Appellant

(Orig. Respondent No.2)

Versus

1. Smt. Hanuben Baburao Padvi,

Age : 48 years, Occu. : Household,

2. Shri. Kiranbhai Baburao Padvi,

Age : 22 years, Occu. : Labourer,

Both R/o. Newala, Tq. Nizar,

Dist. Surat, State - Gujrat

3. Yashwant Ajamsing Padvi,

Age : 40 years, Occu.: Owner of

Ape Rickshaw,

R/o. Sorapada, Tq. Taloda,

Dist. Nandurbar.

… Respondents.

(R.Nos. 1 & 2 Orig. claimants

& R. No.3 orig. claimant no.3)

WITH

FIRST APPEAL NO. 193 OF 2009

United India Insurance Company Ltd.

Through Divisional Manager,

Divisional Office, Jalgaon.

…. Appellant

(Orig. Respondent No.2)

Versus

1. Smt. Hanuben Baburao Padvi,

Age : 48 years, Occu. : Household,

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2. Shri. Kiranbhai Baburao Padvi,

Age : 22 years, Occu. : Labourer,

Both R/o. Newala, Tq. Nizar,

Dist. Surat, State - Gujrat

3. Yashwant Ajamsing Padvi,

Age : 40 years, Occu.: Owner of

Ape Rickshaw,

R/o. Sorapada, Tq. Taloda,

Dist. Nandurbar.

… Respondents.

(R.Nos. 1 & 2 Orig. claimants

& R. No.3 orig. claimant no.3)

.…

Mr. S.V. Kulkarni, Advocate for the Appellant

Mr. P.C. Mayure, Advocate for Respondent Nos. 1 and 2

Respondent No.3 though duly served, remained absent.

….

CORAM : SHRIKANT D. KULKARNI, J.

Reserved on : 20.12.2021

Pronounced on : 04.04.2022

JUDGMENT :-

1.

The order of “pay and recover” passed in M.A.C.P. No. 168

of 2007 by the Member, M.A.C.T. Shahada is challenged by the

United India Insurance Co. Ltd., Divisional Office Jalgaon, by way

of present appeal.

2.

Babu (since deceased) was travelling with other four

passengers in Ape Rickshaw, which was a goods vehicle. The said

vehicle met with an accident on 25.11.2007, wherein Babu

succumbed to injuries.

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3.

Respondent nos. 1 and 2 (original claimants) had filed

claim under Section 166 of the Motor Vehicles Act, 1988 on

account of death of Babu and also prayed for interim

compensation by taking aid of Section 140 of the Motor Vehicles

Act, 1988.

4.

The Tribunal was pleased to grant interim compensation of

Rs.50,000/- by passing order below exhibit 5 and directed to the

owner of Ape Rickshaw and the insurer to pay the interim

compensation with interest @ 8% per annum fro the date of claim

petition. The claim went on trial. The Member, M.A.C.T. after

considering the rival pleadings of the parties, evidence on record

and considering the defence raised by the insurance company /

appellant was pleased to hold that although the insurance

company was not liable to satisfy the claim, but shall pay the

amount of compensation of Rs. 2,67,000/- inclusive of N.F.L.

amount @ 8% per annum and recover the same from the owner of

Ape Rickshaw.

5.

Feeling aggrieved by the impugned order of interim

compensation and order of “pay and recover”, the appellant has

knocked the doors of this Court, by preferring two appeals.

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6.

Heard Mr. S.V. Kulkarni, learned counsel for the appellant

and Mr. P.C. Mayure, learned counsel for respondent nos. 1 and 2 /

original claimants. Respondent no.3 / owner of the vehicle,

remained absent though duly served with notices in both the

appeals.

7.

Mr. Kulkarni, learned counsel for the appellant / insurance

company vehemently submitted that the deceased was travelling as

a gratuitous passenger in Ape Rickshaw, which was a goods vehicle

when met with accidental death. The risk of the deceased is not

covered by the insurance policy obtained by the owner of the

vehicle. It is a case of breach of policy. The Tribunal has

considered this defence. However, while passing the final order,

directed to pay the compensation amount of Rs.